Commission not biased, says director

The Yukon Human Rights Commission does not sit in the lap of government, said director Heather MacFadgen.

The Yukon Human Rights Commission does not sit in the lap of government, said director Heather MacFadgen.

“People come in and worry about that,” said MacFadgen. “Particularly if their complaint is against the government.

“And we always explain, ‘No, we are not a government department or agency, we’re independent’ — nothing could be more important than that.”

MacFadgen was responding to Cheryl Clarke’s recent allegation of  bias within the human rights commission.

Clarke, the only female heavy equipment operator in Whitehorse, said she experienced job discrimination.

In 2000, she approached the commission and was assured her complaints were valid, said Clarke.

But the government did not co-operate with the commission’s investigation, and the commission told Clarke it would take the case to the Yukon Supreme Court to try to access the necessary information, she said.

However, after Clarke was offered the full-time work that had been withheld for years because “she was a woman,” the commission informed her that her case had been dismissed, said Clarke.

To get answers she met with the commission, but was told nothing, she said.

As well, there was no appeal process.

The whole affair shattered Clarke’s faith in the process, she added.

The commission is not accountable to only one party, said MacFadgen.

There are always two sides to any matter that is investigated and any decision that is made, she said.

And the commissioners are not in a position to defend themselves, said MacFadgen.

They are like judges.

When someone approaches human rights with a complaint, the commission impartially investigates it, analyzes the evidence, and then offers both parties a report that fully discusses the evidence found for both sides, said MacFadgen.

“So, we don’t assume when someone comes in that discrimination has occurred,” she said.

The commission begins collecting documents and interviewing witnesses, then submits a report that goes to the commissioners for a decision, said MacFadgen.

“And the commissioners don’t decide whether or not discrimination has occurred; that only happens at a tribunal that is separate from us.

“They decide whether there’s a reasonable basis in the evidence to take the complaint forward to either settlement or a tribunal hearing.”

And if the commissioners find there’s not a reasonable basis for the complaint, after looking at all the evidence, then the case is dismissed, she said.

“But they’re not saying discrimination hasn’t occurred — they’re just saying there’s not a reasonable basis in the evidence.”

If people are dissatisfied with the decision, they have options, said MacFadgen.

But an appeal is not one of them, she added.

Before the commission makes its decision, both parties have a right to make submissions to the commission explaining their case and any further concerns, she said.

“And, at the end of the day, when the commission makes its decision, it writes a letter to the parties explaining what information it used to come to the decision.”

If someone is still unhappy with the decision, they can approach human rights with their concerns, or they can issue a judicial review and have a court decide whether the commission acted fairly, unreasonably or outside it’s jurisdiction, said MacFadgen.

Until recently, the commission did not issue reasons for its decisions.

But a court ruling in April now allows the commission to offer more detailed explanations of how it arrives at decisions.

“Reasons can make people better understand why a decision-maker came to the decision they did, and that can be a real benefit,” said MacFadgen.

“People can come talk to us, if they have serious concerns — our door is open,” she added.